THE ROLE OF THE GAMBIA BAR ASSOCIATION IN “NEW GAMBIA”

On the 12th day of December, 2016, Mr. Sheriff M. Tambadou, the then Interim President of the Gambia Bar Association stood on the steps outside the Conference Hall at the Coco Ocean Hotel and read out a statement on behalf of the Gambia Bar Association.

In this statement the Gambia Bar Association condemned the Former President of The Gambia, Yahya Jammeh’s attempts to subvert the will of the Gambian people as demonstrated in the Presidential elections of 1st December, 2016. This statement by the GBA set off a catalogue of condemnations by other civil society organisations and demonstrated that the change can be achieved by peaceful means. What it further demonstrated is that true power lies in the hands of the people. That, if every one of us comes together to challenge authoritarian rule, we can succeed.

Following the impasse and the events which took place at the end of 2016 and the beginning of 2017, it is clear that there is a need to really consider the role that the Gambia Bar Association should play in the emerging democracy that is The Gambia.

We need to consider the challenges that we face and create a roadmap of how to overcome the challenges.

It is generally accepted that lawyers should be heard and should contribute to the development of legislation and government policy, not because lawyers should be afforded a privileged position in public debate or because we are more important than other professions. We should be heard on these issues because it is an extension of our duties to our clients and to society to get involved in the questions which relate to the formulation of law and its broader application to all citizens.

Without access to competent and independent legal practitioners, individuals are often unaware of or unable to exercise their rights effectively. The laws that are passed then become inconsequential and meaningless.

Part of the obligation of the GBA is therefore to foster the independence of legal practitioners to provide a robust defence for the people. We must also ensure that the honour and the dignity of the profession is maintained. This can only be done by ensuring that each lawyer understands and abides by the highest professional and ethical standards.

Another role that the GBA should have is to scrutinize the actions of the government. The experience of the last Twenty Two years have confirmed that if illegal and wrongful actions and decisions by the government remain unchecked, its officials will become emboldened to continue to flout law and procedure. We moved from a leader who came into power in 1994 talking about accountability and transparency and ended up with a megalomaniac who had no regard for the constitution or any law. We as a people cannot afford to relive this nightmare again. We therefore all have an obligation to scream at the top of our lungs whenever any of the three arms of government fail to adhere to the provisions of our constitution and other laws. We need to understand that “the sovereignty of The Gambia resides in the people of The Gambia from whom all organs of government derive their authority and in whose name and for whose welfare and prosperity the powers of the government are to be exercised in accordance with this Constitution.” These are powerful words. We, as a people should realize that ultimately any government derives its legitimacy from us. Government officials are our servants. They work for us and everything that they do should ultimately be in our best interest. To choose to become a public servant is to choose to carry the weight of the expectations of the people on your shoulders. This is a heavy burden and so we must commend those who make this choice and give them the support they need to carry their burden. In the same vein we must critically analyse their actions and draw them back when they fail to meet to expectations of the people or to comply with the provisions of the constitution and other laws.

We have watched and continue to watch the new Government since they took over the Presidency on the 19th of January, 2017. We appreciate that they took over power at a tumultuous time in our history. We understand that the transition that ought to have happened did not and could not take place. We have given them the benefit of the doubt and have given them sufficient time to get settled in. We therefore remained silent when the President issued a press release on the 31st of January, 2017 purporting to change the name of the National Intelligence Agency (NIA) to the State Intelligence Agency (SIS). The change of name was purportedly effected by Presidential decree. The change of name of the NIA cannot be effected without an amendment to Section 191 of the Constitution. We believed that the announcement was made out of inexperience and expected that it would be remedied. To date, no attempt to amend the Constitution has been made but the Government persists in referring to the NIA as the SIS. Whilst this might seem like a minor issue, we need to remember that The Gambia was suddenly made an Islamic State by Presidential decree despite the provisions of the Constitution making it clear that The Gambia is a secular state and that even the National Assembly did not have the power to pass a Bill to establish any religion as a state religion. Such a decision could only be made by the people through a referendum. By ignoring the attempt to change the name of the NIA to SIS through Presidential decree, we might be sending the message that such actions are acceptable. As stated earlier, we cannot afford to take such issues for granted.

We cannot afford to remain silent when the provisions of the law are not complied with, even for the most minor of issues.

A further derogation from the Constitution was the announcement made on behalf the President of The Gambia, Adama Barrow on the 23rd of January, 2017. The announcement was to the effect that His Excellency the President had appointed the Honourable Mrs Fatoumatta Jallow Tambajang as the Vice President of the Republic of The Gambia.

What followed this announcement was a public discussion as to whether Mrs Tambajang was qualified to be appointed Vice President under the provisions of the Constitution of the Republic of The Gambia, 1997. Section 70(2) of the Constitution provides that “a person shall be qualified to be appointed as Vice-President if he or she has the qualifications required for the election of the President under Section 62”. Section 62 (1) (b) provides that a person shall be qualified for election as President if “he or she has attained the minimum age of thirty years but not more than sixty-five years.”

The controversy arose as to the age of Mrs Tambajang. This controversy was acknowledged and the Spokesperson for the President in a subsequent press statement said that the attention of the President had been drawn to the constitutional provisions. He stated further that whilst Mrs Tambajang is well suited for the job, the provisions of the Constitution will be respected.

The public was informed that the matter was being looked into and the people of The Gambia will be informed subsequently. In the interim, Mrs Tambajang took over the functions of the Vice President. She represented the country at Regional meetings and attended public functions as the Vice President of The Gambia.

On Monday the 27th day of February, 2017, there was a press release published in the newspapers stating that the National Assembly was convening a second extra ordinary meeting of the National Assembly in the 2017 Legislative year to consider the “1997 Constitutional (Amendment) Bill, 2017” and “The Elections (Amendment) Bill, 2017”. These Bills were debated on the 28th of February, 2017 and passed by the National Assembly.

The 1997 Constitutional (Amendment) Bill, 2017 sought to amend the age requirement under Section 62 (1) of the Constitution by deleting the maximum age of sixty-five set by the Constitution. There was a huge outcry following the purporting passing of the Bill. The Honorable Attorney General subsequently gave a press conference admitting that the process of the amendment was not in accordance with the Constitution.

The President had on the 22nd of February, 2017 announced that that Mrs. Jallow Tambajang was appointed as the Minster of Women’s Affairs and the Overseer of the Office of the Vice President. To date, there has been no announcement clarifying the age of Mrs Jallow Tambajang. This is despite the fact that the President had on the 28th of January, 2017 given a press conference in which he said that Mrs Jallow Tambajang is not above the age of 65 and that proof of this would be presented to the people. To date no such proof has been presented. Rather, what followed was the abortive attempt to amend the Constitution.

Despite the outcry that followed the abortive attempt to amend the Constitution, it seems that the government is determined to persist on its attempt to amend the Constitution to remove the upper age limit for holding office as President of the Republic of The Gambia thereby paving the way for the appointment of Mrs Jallow Tambajang as Vice President. On the 13th of April, 2017, there was a gazette announcement of that it is intended to introduce a Bill to the National Assembly “to amend the Constitution of the Republic of The Gambia, 1997 to revise the compulsory age of a judge of a Superior Court, to remove the upper age limit for holding office as President of the Republic of The Gambia and for connected matters.”

The Bill was debated and passed by the National Assembly in its sitting of the 25th of July, 2017. This is an issue of concern. Firstly, it raises the question of whether the amendment to the Constitution is solely in order to regularize the appointment of Mrs Tambajang as Vice President. It would seem so particularly taking into consideration the fact that seven months into this government, the President has still not appointed a Vice President. This is of concern because it would suggest that the Government, instead of acting in accordance with the law, is rather amending the law to legitimize decisions already made. This reminds us of the case of SABALLY v INSPECTOR GENERAL OF POLICE (1997-2001) GR 878. That case follows the events of the protests which took place on the 10th April, 2000. Sabally sued the Inspector General of Police for injuries occasioned on him by State Security Personnel. Whilst the case was pending, the Government passed the Indemnity (Amendment) Act, 2001 which sought to indemnify security agents against all claims in respect of actions taken during a period of public emergency.

Whilst the facts of that case can be distinguished from the present case, in both cases, the Government rather than conforming its actions within the confines of the law, has instead chosen to alter the law to legitimize actions already taken. The government that sought to introduce the Indemnity (Amendment) Act, 2001 was an authoritarian government. This government was elected on the promise of respect for the rule of law and democratic principles. The similarities in the response by these two governments should be an issue of great concern to every Gambian. The laws of our land particularly the provisions of the Constitution are not written in pencil to be erased to suit the interest of one individual.

Whilst there are good arguments for the removal of the upper age limit for holding office as President, is this an issue of such urgency that it cannot await the comprehensive review of the Constitution which we are told is in the pipeline? We have not heard any arguments put forward by the Government on this issue. We will reserve our opinion on this point for now. It should be emphasized however that there are provisions in the Constitution which require urgent consideration. Section 18 (3) provides that “the National Assembly shall within ten years from the date of coming into force of this Constitution review the desirability or otherwise of the total abolition of the death penalty in The Gambia.” Twenty years, later, this issue has yet to be considered by the National Assembly. Is the removal of the upper age limit for President a more urgent issue than the decision as to whether or not we want the death penalty to be part of our laws? This is a question which the Government must answer if they want us to believe that the proposed amendment was not designed solely to pave the way for the appointment of Mrs Jallow Tambajang as the Vice President.

Ultimately, the Government must realize that the honeymoon has ended and the realities of everyday life have set in. We do not see what effect a change of name of the NIA has if the same operatives who had no consideration of the principles of rule of law are the same operatives working for the so called SIS. It is naïve to believe that a change of name of one of the most feared institutions under the Jammeh regime will cause a change in the perception of the general public of that institution. The change of name has not led to a change of perception. The manner in which the change of name was done has only led to a feeling of déjà vu.

The experience of déjà vu is repeated on a daily basis by Gambian motorists who are forced to yield to the familiar unmarked, speeding and menacingly tinted government vehicles. While Section 8 of the Motor Traffic Act clearly makes it illegal for any vehicle apart from the vehicle of the President to be unmarked; this Government has happily slipped into the shoes of the latter. Our liberators are now eerily mimicking the familiar acts of the former dictator.

On the 13th of July 2017 the Ministry of Interior issued a press release stating that tinted glass permits for non-factory tints would be banned for all vehicles except an exclusive few including the top echelons of Government and curiously …. “Bank Heads”. No reasons were given. In the first place the requirement for tint clearances are illegal. This author has not found any Regulation issued by the Minister of Interior under the Motor Traffic Act requiring tint clearances. Without such regulations the requirement for tint clearances are illegal and an abuse of power.

Instead of reversing this, the new Minister of Interior has sought to tighten the noose. The public may have found such an announcement palatable if security reasons were given for the protection of civil servants. However it is evident that the exclusive list contains no security officials. Why are “Bank Heads” privileged above the average Gambian? Is anyone of managerial level in a Bank entitled to a national VIP status? Why must the servants of the public who are bound to transparency hide behind tinted glasses while tax paying Gambians who fought for freedom cannot freely tint their cars within the limits of roadworthiness.

The trend is disturbing and it is escalating. This Government must recognize that it leads, subject always to the good graces of The Gambian people. The people yearn for freedom and change. And while change may have come for the privileged few, we the majority grow ever more impatient.

We remind the Government that one of the directive principles set down under our Constitution, which should guide its actions towards the common good is that it should endeavour to secure and promote a society founded on the principles of freedom, equality, justice, tolerance, probity and accountability. This is more reason why our public officials should not hide behind heavily tinted windows in cars paid for by hard working tax payers.

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